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[J-56A-M-2018]

IN THE SUPREME COURT OF PENNSYLVANIA


WESTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

IN RE: FORTIETH STATEWIDE : Nos. 75, 77-82, 84, 86-89, 106 WM


INVESTIGATING GRAND JURY : 2018
:
:
: SUBMITTED: July 27, 2018

OPINION

CHIEF JUSTICE SAYLOR Filed: July 27, 2018

Before the Court are numerous petitions for review challenging the public release

of Report 1 of the 40th Statewide Investigating Grand Jury, insofar as the report

discloses findings of criminal and/or morally reprehensible conduct on the part of named

petitioner-appellants. These individuals contend that the grand jury’s findings are not

supported by a preponderance of the evidence and are false or misleading.

Additionally, it is their position that they were denied due process of law, and that the

release of the findings to the public -- under the authority of a state-sanctioned, judicially

approved grand jury -- would impair their reputations in violation of their fundamental

constitutional rights.

As the litigation has progressed, this Court has found it necessary to take

measures to protect the identities of the petitioner-appellants, at least until their

constitutional challenges have been finally resolved. Accordingly, we have issued a

series of orders that reflect our intentions in this regard.


The controversy remains at an interim stage. Presently, however, the Court has

determined that large portions of the grand jury’s report can be released to the public,

without compromising the petitioner-appellants’ constitutional rights, as long as

sufficient measures are taken to continue to protect their identities during the remaining

process of judicial review. Accordingly, in the Order attendant to this opinion, set forth

at Part VIII, we have provided that an interim version of the grand jury report will be

released, containing temporary redactions solely to protect the identities of those who

have lodged challenges before us, pending further order of this Court.

In the process of determining that an interim report should be released, the Court

has considered and resolved several interrelated issues presented in common legal

arguments advanced by the petitioner-appellants across the appeals pending at most of

the above dockets. Our intent is to facilitate the publication -- as expeditiously as

possible -- of as full a final report as may be released consistent with the protection of

the petitioner-appellants’ fundamental rights secured by the Pennsylvania Constitution.

I. Background

The 40th Statewide Investigating Grand Jury was convened in 2016 under the

Investigating Grand Jury Act.1 The Pennsylvania Attorney General initiated confidential

grand jury proceedings to investigate allegations of child sexual abuse by individuals

associated with six of the eight Pennsylvania dioceses of the Roman Catholic Church,

failure to make mandatory reports, acts endangering the welfare of children, and

obstruction of justice by Church officials, community leaders, and/or public officials.

See, e.g., In re 40th Statewide Investigating Grand Jury, No. 571 M.D. 2016, slip op. at

9 (C.P. Allegheny June 5, 2018). As required by the Pennsylvania General Assembly,

1Act of Oct. 5, 1980, P.L. 693, No. 142, §216(a)(2) (as amended 42 Pa.C.S. §§4541-
4553).

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these proceedings were conducted under the umbrella of secrecy pertaining to

investigating grand juries, subject to the discretion of the supervising judge to permit the

public release of information. See 42 Pa.C.S. §4549(b).

Prior to the expiration of its term, the 40th Statewide Investigating Grand Jury

submitted a report of the above investigation to its supervising judge, the Honorable

Norman A. Krumenacker, III. See 42 Pa.C.S. §4552. Significantly, the report is not

generally couched in conventional “investigatory” terms, such as by allusion to the

character and quality of the evidence reviewed according to the application of a

probable cause standard. Rather, the introductory passages of the report pronounce

that the grand jury will identify over three hundred “predator priests” by name and

describe their conduct in terms of “what they did -- both the sex offenders and those

who concealed them[,] . . . shin[ing] a light on their conduct, because that is what the

victims deserve.” Report 1, at 2. The balance of the report extensively furnishes

detailed elaborations condemning the conduct of the alleged predators and those within

the Church hierarchy who may have facilitated the abuses and/or failed to intervene.2

It is important to observe, early on, that the manner in which the grand jury

approached its report -- i.e., finding facts and declaring that named individuals actually

perpetrated abhorrent acts -- is central to the legal assessment of the many

constitutional challenges to the public release of the report, as discussed at length in

Parts II and III, below. In this regard, targeted condemnation of named individuals is not

inherent in the production of a grand jury report, although reports sometimes have been

2 In order to provide appropriate context, this opinion reveals some information that
would otherwise be subject to grand jury secrecy. The supervising judge has signaled
his approval of the release of this information (along with the balance of Report 1), and
the publication of the content that we provide is not contested by the petitioner-
appellants, whose efforts focus on the suppression of information from the report that is
specific to them personally.

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used in this fashion, and plainly the grand jurors believed that it was essential to do so

here. Nevertheless, grand jury reports of this sort foster the most substantial

controversies, because they amplify the tension between the grand jury’s reporting

function and the constitutional rights of the individuals who are impugned in the report.

See, e.g., Petition of Davis, 257 So. 2d 884, 887 (Miss. 1972) (depicting a critical grand

jury report as subjecting an individual to “a quasi official accusation of misconduct

resulting from secret ex parte proceedings in which there is no opportunity available for

presenting a formal defense”); see also infra Part II.

The grand jury report in issue is denominated “Report 1,” and its submission

triggered a statutory procedure for review and publication. By law, the supervising

judge was required to examine the report and the confidential record of the proceedings

and to issue an order accepting and filing the report as a matter of public record “only if

the report is based upon facts received in the course of an investigation authorized by

[the Investigating Grand Jury Act] and is supported by the preponderance of the

evidence.” 42 Pa.C.S. §4552(b) (emphasis added).

Additionally, the statutory scheme allocates discretion to the supervising judge to

permit the submission of written responses by individuals who are not indicted, but

about whom a report is critical. See id. §4552(e). Again, in the discretion of the

supervising judge, such responses may be attached to the report and also released

publicly. See id.

The supervising judge proceeded to accept the grand jury’s Report 1, while

specifically opining that it was supported by a preponderance of the evidence. See

Order dated Apr. 27, 2018, and Amended Order dated May 22, 2018, in In re 40th

Statewide Investigating Grand Jury, No. 571 M.D. 2016 (C.P. Allegheny). The predicate

orders, however, contained no explanation of the manner by which the judge reached

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his preponderance determination, no account concerning whether that pronouncement

was focused on the report as a whole or encompassed an assessment of the facts

related to each individual named in the report,3 and no discussion of the evidence

considered. These orders nonetheless served as a clear signal that the judge intended

for Report 1 to be filed publicly.

Further, given that the report censured the conduct of individuals who were not

charged with crimes, the supervising judge elected to permit living individuals who were

named or implicated to submit responses to the material findings of the report. See

Amended Order dated May 22, 2018, in In re 40th Statewide Investigating Grand Jury,

No. 571 M.D. 2016 (citing 42 Pa.C.S. §4552(e)). The judge then devised a procedure

to afford notice to these individuals, allowing them thirty days to respond.

Dozens of individuals (primarily members of the clergy) responded with

challenges to Report 1, generally asserting a denial of constitutional rights. Although

the claims differed in particulars to some degree, they shared certain key features.

Most of the petitioners alleged that they are named or identified in Report 1 in a way

that unconstitutionally infringes on their right to reputation. See PA. CONST. art. I, §1

(“All men are born equally free and independent, and have certain inherent and

indefeasible rights, among which are those of enjoying and defending life and liberty, of

acquiring, possessing and protecting property and reputation, and of pursuing their own

happiness.” (emphasis added)); see also id. §11. They also claimed that they were

denied due process of law based upon the lack of an opportunity to be heard by the

3 The questions of manner and scope are significant, because the litigants present
divergent views concerning the requirements of the Investigating Grand Jury Act
pertaining to a supervising judge’s preponderance findings. These matters are touched
upon in Part III of this opinion, and we anticipate returning to them in greater detail at a
later time.

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grand jury itself or in a pre-deprivation hearing before the supervising judge. See U.S.

CONST. amend. XIV (precluding the states from depriving “any person of life, liberty, or

property, without due process of law”); see also PA. CONST. art. I, §§1, 11. See

generally Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976) (“The

fundamental requirement of due process is the opportunity to be heard ‘at a meaningful

time and in a meaningful manner.’” (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85

S. Ct. 1187, 1191 (1965))). Many of the petitioners asserted that they were not aware

of, and/or not permitted to appear at, the proceedings before the grand jury.

Several of the petitioners offered that due process could be satisfied if the

supervising judge would conduct pre-deprivation evidentiary hearings to permit their

meaningful participation in such an alternative forum. They asked the judge to consider

excising information about them from the grand jury report that they could demonstrate

was unsupported, false, and/or misleading, while leaving the vast bulk of the report

available for review by the public. The supervising judge, however, found “no provision

in the laws or Constitution of the Commonwealth that permits the redaction of a Grand

Jury report, the findings of which are supported by the preponderance of the evidence,

after it has been submitted to and accepted by the supervising judge.” Order of May 31,

2018, in In re 40th Statewide Investigating Grand Jury, No. 571 M.D. 2016. According

to the judge, the petitioners had received all of the process that was due them under the

law. See id.

The supervising judge’s treatment, in these regards, was further developed in an

opinion and order of June 5, 2018, which was made available to the public. See In re

40th Statewide Investigating Grand Jury, No. 571 M.D. 2016, slip op. at 9 (C.P.

Allegheny June 5, 2018) [hereinafter, “June 5 Opinion, at ___”]. In that opinion, the

judge framed the legal issue as “whether a named nonindicted person in a grand jury

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report is, prior to the public release of the report, entitled by virtue of due process to

have a full pre-deprivation hearing, including the right to cross-examine Commonwealth

witnesses, present witnesses of their own, and present evidence.” Id. at 1.

Initially, the supervising judge found that the petitioners’ concern with grand jury

condemnation was sufficient, constitutionally, to implicate a requirement of procedural

due process. See id. at 2 (citing R. v. DPW, 535 Pa. 440, 454, 636 A.2d 142, 149

(1994)). In this regard, the judge recognized that protection of one’s reputation is a

fundamental right under the Pennsylvania Constitution. See PA. CONST. art. I, §1; see

also R. v. DPW, 535 Pa. at 454, 636 A.2d at 149. Accordingly, his remaining analysis

centered on the question of what particular process was due to the petitioners.

Consistent with the longstanding jurisprudence of the Supreme Court of the

United States and this Court, the supervising judge set forth the framework for

procedural due process, as recently related in Bundy v. Wetzel, ___ Pa. ___, 184 A.3d

551 (2018), centered upon Mathews, 424 U.S. at 333, 96 S. Ct. at 902. First, he

observed that the concept of due process is a flexible one, and that the procedures that

it requires will vary according to the particular situation. See Zinermon v. Burch, 494

U.S. 113, 127, 110 S. Ct. 975, 984 (1990). Furthermore, he related, ascertainment of

what process is due requires a balancing of the following three factors:

(1) the private interest affected by the governmental action;

(2) the risk of an erroneous deprivation together with the


value of additional or substitute safeguards; and

(3) the state interest involved, including the administrative


burden the additional or substitute procedural requirements
would impose on the state.
Bundy, ___ Pa. at ___, 184 A.3d at 557 (citing Mathews, 424 U.S. at 335, 96 S. Ct. at

903).

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The supervising judge also depicted the central demands of due process in the

conventional terms of notice and a meaningful opportunity to be heard in furtherance of

the protection of the underlying right (here, reputation). See June 5 Opinion, at 2 (citing,

indirectly, Mathews, 424 U.S. at 333, 96 S. Ct. at 902). The judge elaborated that the

Supreme Court of the United States has described due process as an “elusive concept”

with “exact boundaries [that] are undefinable.” Hannah v. Larche, 363 U.S. 420, 442,

80 S. Ct. 1502, 1514 (1960).

Prominent among the circumstances that the supervising judge considered

material was his depiction of an investigating grand jury issuing a report as solely an

investigative -- and not an adjudicative -- body. See June 5 Opinion, at 4. Relying on

Hannah, 363 U.S. at 420, 80 S. Ct. at 1502 (upholding procedural rules of the federal

Commission on Civil Rights providing that the identity of complainants need not be

disclosed and withholding any right of cross-examination from witnesses before the

Commission, relative to other witnesses), the judge reasoned that lesser due process

protections are generally implicated in relation to governmental investigatory functions.

In the supervising judge’s judgment, the statutory procedures allowing for notice to

named (but uncharged) persons, and providing an opportunity to respond in writing prior

to public release, were sufficient to support the issuance of an investigating grand jury

report. See June 5 Opinion, at 4 (citing 42 Pa.C.S. §4552(e)).4

In terms of the Mathews factors, again, the supervising judge recognized the

fundamental nature of the reputational interests at stake. See id. at 5. He found the

4 The supervising judge incorrectly indicated that the statutory provisions pertaining to
notice and an opportunity to respond are mandatory when, in fact, they turn on a
supervising judge’s exercise of “his sole discretion.” 42 Pa.C.S. §4552(e). In the
present appellate proceedings, the Commonwealth, at times, perpetuates this mistake.
See, e.g., Brief for Appellee at 6 (“The statutory framework accounts for [the due
process] concern through the pre-publication right of response.” (emphasis added)).

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risk of an erroneous deprivation to be minimal, nonetheless, in light of the statutory

requirement for supervising judges to determine that the findings of the grand jurors are

supported by a preponderance of the evidence. See id. In this regard, the supervising

judge explained, in broad strokes, that “the grand jury, in reaching its findings, heard

from dozens of witnesses, examined numerous exhibits, and reviewed over half a

million pages of internal diocesan documents from the archives of various Dioceses.”

Id.5

As to the administrative burden, the supervising judge suggested that providing

any greater procedural protections would be unduly disruptive of the “purely

investigative function” of the grand jury. Id. at 6 (“[P]ermitting persons named in grand

jury reports to present evidence, including potentially their own testimony subject to

cross-examination, to the grand jury would turn an investigative proceeding into an

adjudicative one which is not the purpose or function of an investigative grand jury.”).

The supervising judge further opined that “[a]dopting the position advanced by the

movants would fundamentally change the Grand Jury Act’s procedures, change the

historical function of grand juries, and effectively bring the grand jury process to a halt

turning each investigation into a full adjudication.” Id. at 6-7.

The supervising judge also offered his reasoning for rejecting the proposal for a

pre-deprivation hearing before him. According to the judge, this would impose too great

a burden on the Commonwealth, which “would be required to allow [the petitioners]

access to the testimony of witnesses traditionally shielded in grand jury secrecy, permit

them to recall and cross-examine those witnesses, and allow the presentation of new

evidence.” Id. at 7. Moreover, it was clear that the supervising judge did not believe

5The supervising judge also noted that all current Bishops for the relevant dioceses
were afforded the opportunity to testify before the grand jury, and one bishop did testify,
while five others filed written statements. See id. at 5.

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that he had the authority to personally conduct hearings in any event, since it was the

function of the grand jury “to weigh the evidence and make factual findings.” Id. at 8.

The supervising judge certified his orders as to most of the challenges for

immediate appeal, in recognition of the existence of controlling questions of law over

which there are substantial grounds for a difference of opinion. See 42 Pa.C.S.

§702(b); Pa.R.A.P. 3331(a)(5) (facilitating review of grand jury orders upon certification

by a supervising judge). Despite this certification, however, the supervising judge did

not temporarily halt the release of Report 1. Rather, the judge indicated that the report

would be published as early as June 23, 2018.

Affected individuals filed multiple petitions for review in this Court, along with

emergency applications to stay the public release of Report 1 pending the Court’s

review. Initially, the Commonwealth did not oppose a brief stay.

On June 20, 2018, this Court entered an order granting the requested,

unopposed stay, and we issued a supportive per curiam opinion on June 25, 2018. We

explained that the June 23 release date provided inadequate time for orderly judicial

review; the appellate-level proceedings were incomplete and adequate development

was necessary; this Court did not have essential information, including Report 1 itself;

and the Commonwealth had confirmed the appropriateness of a stay in some cases and

indicated that it had no objection to a brief stay in others.

In most of the cases that are the subject of this opinion, clergy-petitioners

(referred to hereinafter as “Appellants”) have filed a single brief addressing common

issues, as well as supplemental briefs addressing individualized matters. The

Commonwealth, in turn, has responded to the common issues in a unified fashion.

Redacted versions of the litigants’ briefs are being made available to the public,

following resolution of disputes as to the redactions.

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In the interim, the Commonwealth filed motions to lift the stay and to unseal the

record of the proceedings before this Court in all pending appeals.6 In those filings and

elsewhere, the Commonwealth has made it clear that it considers it to be a matter of

great public importance for Report 1 to be released to the public immediately. News

organizations (the “Media Intervenors”) have presented submissions consistent with the

Commonwealth’s view concerning immediate publication. Alternatively, the Media

Intervenors seek release of a redacted version of the report during the pendency of the

litigation, which removes only information identifying the limited range of individuals who

have filed appellate challenges. Appellants have opposed relief from the stay pending

final resolution of their challenges, asserting that the common goal of all parties should

be the ultimate publication of a report that is fair and accurate.

We address the legal arguments presented on a plenary basis. See, e.g., Six L's

Packing Co. v. WCAB (Williamson), 615 Pa. 615, 629, 44 A.3d 1148, 1157 (2012).

II. Grand Jury Reports

We begin our analysis with a discussion of grand jury reports and a related

document, namely, the presentment.7

The grand jury is an institution with deep historical roots. See, e.g., Costello v.

United States, 350 U.S. 359, 362, 76 S. Ct. 406, 408 (1956) (“The grand jury is an

6Those filings presently remain under seal and are mentioned here to provide context.
Disclosure of the fact of the filing does not impair grand jury secrecy or the petitioner-
appellants’ rights in any fashion.

7 Although there are variations among jurisdictions concerning the character of


presentments, they are generally criminal accusations initiated by a grand jury, as
opposed to accusations advanced by a prosecutor. See BLACK’S LAW DICTIONARY 1184
(6th ed. 1990). In Pennsylvania, the filing of presentments is expressly authorized by
the Investigating Grand Jury Act. See 42 Pa.C.S. §4551.

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English institution, brought to this country by the early colonists and incorporated in the

Constitution by the Founders.”); In re Report & Rec. of June 5, 1972 Grand Jury, 370 F.

Supp. 1219, 1222 (D.D.C. 1974) (“By virtue of the Fifth Amendment, grand jury

prerogatives were given institutional status in the United States, and grand juries have

ever since played a fundamental role in our criminal justice system.”). The operation of

grand juries in a unique, non-adversarial, secret environment -- where qualitative rules

pertaining to the consideration of evidence do not apply and witnesses are not subject

to cross-examination -- offers substantial advantages in terms of the gathering and

review of information. See Costello, 350 U.S. at 364, 76 S. Ct. at 409 (explaining, with

reference to “the whole history of the grand jury institution,” that “laymen conduct their

inquiries unfettered by technical rules”).

But these features also implicate concomitant limitations. As related by a federal

district court:

The need for safeguards on the grand jury is enhanced by


the fact that it is not bound by the rules of evidence that
normally protect the publicly accused from baseless or
unduly prejudicial information. The grand jury can hear any
rumor, tip, hearsay, or innuendo it wishes, in secret, with no
opportunity for cross-examination. Costello v. U.S., 350 U.S.
359, 76 S. Ct. 406, 100 L. Ed. 397 (1956). The grand jury is
not required to hear or consider evidence which would
exonerate a target of an investigation, and the fairness of its
methods is unreviewable. U.S. v. Williams, 504 U.S. 36, 112
S. Ct. 1735, 118 L. Ed. 2d 352 (1992).
In re Grand Jury Proceedings, Special Grand Jury 89-2, 813 F. Supp. 1451, 1463 (D.

Colo. 1993); accord Simpson v. Langston, 664 S.W.2d 872, 873 (Ark. 1984); Fabiano v.

Palos Hills, 784 N.E.2d 258, 276 (Ill. Ct. App. 2002) (“The absence of cross-examination

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and the nonadversarial nature of grand jury proceedings increase the risk that false

testimony will go undetected[.]”).8

Manifestly, secrecy will serve as a check on grand jury power, since, to the

degree that the grand jury’s influence is confined to the jury room, the potential for

impact on reputational rights is constrained. See Special Grand Jury 89-2, 813 F. Supp.

at 1464. Nevertheless, the General Assembly has authorized Pennsylvania

investigating grand juries to issue public reports. See 42 Pa.C.S. §4552. Moreover,

such reports -- like the institution of the grand jury itself -- have a long lineage. See,

e.g., Biglieri v. Washoe Cty. Grand Jury Report, 601 P.2d 703, 705 (Nev. 1979) (“The

reportorial function of the grand jury, serving to enlighten the community on matters of

public importance, occupies an important position in our democratic form of

government.”).

Significantly, however, courts draw a sharp distinction between grand jury reports

that speak generally to public affairs and those that impugn named persons. Compare

Ex Parte Faulker, 251 S.W.2d 822, 823 (Ark. 1952) (“So long as grand jury reports

relate to general conditions affecting the public welfare and without reflecting specifically

upon the character, or censuring the conduct, of individual citizens they serve a

wholesome purpose and are frequently followed by beneficial results to the

community.”), with Application of United Elec. Radio & Mach. Workers of Am., 111 F.

Supp. 858, 867 (S.D.N.Y. 1953) (“[A] man should not be subject to a quasi-official

8 See generally W AYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING & ORIN S. KERR, 4
CRIM. PROC. §15.3(a) (4th ed. 2017) (observing that the structure of grand jury
screening “asks a group of laypersons to apply an unfamiliar legal standard to a one-
sided case, presented in a process that is non-adversary, that allows the prosecutor to
establish a close rapport with the jurors, and that forces the jurors to rely largely on the
prosecutor’s investigative resources and legal advice”).

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accusation of misconduct which he cannot answer in an authoritative forum.”).9 In this

regard, substantial controversy arises when the reporting function is directed toward

targeted condemnation. See, e.g., Thompson v. Macon-Bibb Cty. Hosp. Auth., 273

S.E.2d 19, 21 (Ga. 1980) (“Although there are important even compelling reasons for

allowing a grand jury to bring the misconduct and malfeasance of specific public officials

to light, this beneficial aspect of grand jury reporting must give way to the need for due

process and fairness to the individual.”);10 Brooks v. Binderup, 39 Cal. App. 4th 1287,

1292 (Cal. Ct. App. 1995) (“[C]ourts and commentators have long recognized the

vulnerability of unindicted individuals who are openly criticized in grand jury reports.”).11

In New York, before the advent there of statutory procedural safeguards,

including the right of criticized persons to appear before a grand jury, see N.Y. CRIM.

PROC. L. §190.85, the appellate courts displayed a particular hostility towards grand jury

reports and presentments. For example, in People v. McCabe, 266 N.Y.S. 363 (N.Y.

Sup. Ct. 1933), the court opined:

9 Commentators have observed that some of the strongest judicial expressions of


concern about the fairness of the reporting function of grand juries were written during
the McCarthy era. See, e.g., Barry Jeffrey Stern, Revealing Misconduct by Public
Officials through Grand Jury Reports, 136 U. PA. L. REV. 73, 77 n.10 (1987) (citing 1
SARA SUN BEALE & W ILLIAM C. BRYSON, GRAND JURY LAW AND PRACTICE §3:03 (1986)).
The United Electrical, Radio & Machine Workers of America decision is recognized as a
leading case in this respect. See id.

10The Thompson case is couched in terms of criticisms of government officials, since


public office, along with the subject of organized crime, is an arena in which grand jury
reports most often have been authorized.

11 See generally Richard H. Kuh, The Grand Jury “Presentment”: Foul Blow or Fair
Play?, 55 COLUM. L. REV. 1103, 1103, 1126 (1955) (positing that grand jury
presentments and reports exist “in the shadow of illegality” and discussing “fair play”
procedural safeguards to protect individual rights).

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A presentment is a foul blow. It wins the importance of a
judicial document; yet it lacks its principal attributes -- the
right to answer and to appeal. It accuses but furnishes no
forum for a denial. No one knows upon what evidence the
findings are based. An indictment may be challenged --
even defeated. The presentment is immune. It is like the
“hit and run” motorist. Before application can be made to
suppress it, it is the subject of public gossip. The damage is
done. The injury it may unjustly inflict may never be healed.
Id. at 367;12 accord Davis, 257 So. 2d at 886-88. See generally In re North, 16 F.3d

1234, 1239 (D.C. Cir. 1994) (“[V]arious courts have struck down with strong language

efforts by grand juries to accuse persons of crime while affording them no forum in

which to vindicate themselves[.]” (citations and internal quotations omitted)).13

The core concern of the courts has been with the protection of reputational rights.

The Supreme Court of Minnesota has offered the following perspective about the

potential harm to those rights that may be inflicted by a grand jury report:

The judicial imprimatur under which a grand jury operates


gives to its pronouncements a ring of proven truth which they
may not deserve. A formal indictment, supported by

12 In terms of the “foul blow” rubric, some courts have found presentments and reports
to be distinguishable only in that reports are “governed by standards which aim to soften
foul blows.” Special Grand Jury 89-2, 813 F. Supp. at 1463. Notably, the sufficiency of
the standards by which this softening occurs in Pennsylvania is a critical consideration
at issue in the present cases, as discussed below. See infra Part III.

13 These lines of criticism have led to the general disfavoring of presentments and
reports in the federal system as a means of revealing wrongdoing, see Special Grand
Jury 89-2, 813 F. Supp. at 1462-63, although there are some circumstances under
which they persist. See, e.g., 18 U.S.C. §3333 (pertaining to a special grand jury report
relating to organized criminal activity). Significantly, however, in the limited
circumstances in which federal special grand jury reports remain, no individual may be
named in the report without first being afforded the opportunity to appear before the
grand jury. See DEP’T OF JUSTICE, CRIM. RES. MAN. §159, available at
https://www.justice.gov/usam/criminal-resource-manual-159-reports-special-grand-juries
(last viewed July 16, 2018).

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probable cause, is followed by a public trial during which a
whole range of constitutional provisions insure a fair hearing
for the accused. An informal report, on the other hand,
drafted after a secret investigation and based on an
uncertain standard of proof, may be remembered long after
equally informal denials or objections forthcoming from its
targets are forgotten. And the report’s readers may
understandably but incorrectly assume that at least the
rudiments of due process notice and opportunity to be heard
were afforded the accused.
In re Grand Jury of Hennepin Cty., 271 N.W.2d 817, 819 (Minn. 1978).14

There is no challenge presently before this Court to the release of Report 1 at

large, nor are we presented with a pure facial constitutional challenge to the provisions

of the Investigating Grand Jury Act authorizing the public release of grand jury reports.

More narrowly, the arguments presently under review seek an opportunity on

Appellants’ part -- as members of the Roman Catholic clergy accused by the grand jury

of reprehensible conduct -- to participate in an evidentiary hearing prior to the release of

the report.15 If they can satisfy the supervising judge that the grand jury’s findings are

14 Accord Simpson, 664 S.W.2d at 873 (“The report is a state publication which carries
the aura of approval by the judge who accepted it.”); Petition of Davis, 257 So. 2d at
888 (“The statement of a grand jury demands respect within a community and its
deliberations and conclusions are tantamount to fact in the eyes of the populace.”);
Wood v. Hughes, 173 N.E.2d 21, 26 (N.Y. 1961) (upon consideration of the grand jury
as a “judicial body occupying a position of respect and importance in the community,”
depicting the potential for harm from an accusatory grand jury report as “incalculable”);
Simington v. Shimp, 398 N.E.2d 812, 816 (Ohio Ct. App. 1978) (expressing the view
that, on account of “the public’s belief that the grand jury speaks with judicial authority[,]
. . . any attempt by a named individual to rebut the contents of [a grand jury] report
would not have, in the public’s mind, the same ‘official weight’ as the report’s original
accusation”).

15 Appellants suggest that, ideally, criticized persons would be afforded an opportunity


to appear before the grand jury contemplating a report, as is explicitly mandatory in the
federal system and in some other jurisdictions. See, e.g., supra note 13; N.Y. CRIM.
PROC. L. §190.85. Relative to Report 1, however, this opportunity is foreclosed, since
the tenure of the 40th Statewide Investigating Grand Jury has expired.

[J-56A-M-2018] - 16
unsupported by a preponderance of the evidence (subsuming an accounting for

evidence adduced at the hearing), Appellants ask that unsupported, false, and/or

misleading findings be excised from the report prior to its release to the public, in order

that their reputations might be preserved. See, e.g., Brief for Appellants at 27, 56-57

(positing that “the Report is riddled with clear errors and improper, misleading, and

unreliable accusations and conclusions” and that they should have some chance to

demonstrate this before the report is released publicly). In other words, Appellants

request a pre-deprivation hearing as a manifestation of fundamental due process and

fair play.

III. Pre-Deprivation Process

The Commonwealth opposes the affordance of any additional process. Its

submissions do not recognize the concerns expressed by the courts and commentators

as discussed in Part II, above. According to the Commonwealth, the “right of [written]

response” on the part of individuals criticized in a grand jury report will be universally

sufficient to adequately protect their reputational interests as against condemnatory

findings and satisfy due process norms. Brief for Appellee at 6; see also id. at 5 (“The

Grand Jury Act provides protection against allegedly unfair statements in a report not by

suppressing them, as petitioners demand, but by allowing both sides to speak.”).16

The Commonwealth posits, on the one hand, that the grand jury system serves

to “give an unfiltered voice to the people.” Id. at 12. Nevertheless, the Commonwealth

separately downplays the impact of Report 1 and assures its judicious reception by the

public, as follows:

16 As previously noted, this “right of [written] response” is not couched in the


Investigating Grand Jury Act as a “right,” but rather, is directed to the “sole discretion” of
a supervising judge. 42 Pa.C.S. §4552(e); see supra note 4.

[J-56A-M-2018] - 17
The report is not a judicial adjudication of wrongdoing, but
rather the opinion of lay jurors. The public at large
presumably understands that opinions may be wrong, just as
accusations in a civil complaint (which is filed in court, and
may be disseminated by news media) are understood to be
partisan averments that are potentially false.
Brief for Appellee at 18.

Notably, in the following passage taken from its brief, the Commonwealth

appears to display an appreciation that a grand jury report will directly impact

Appellants’ fundamental reputational rights:

Grand jury reports do not initiate legal proceedings or


deprive individuals of life, liberty, or property; instead they
raise issues that the jurors, as representatives of their
community, believe the public needs to consider.
Sometimes, there is simply no way to do that without saying
things that may affect the reputations of certain individuals.
Brief for Appellee at 6 (emphasis added).17 Along these lines, the Commonwealth

acknowledges that grand jury reports -- not only as they pertain to general conditions

affecting public welfare, but also insofar as they may impugn the reputations of specific

persons -- will yield critical judgments by the citizenry.18

17 In this passage, the Commonwealth also implies that reputational rights are of a lower
order than life, liberty, and property. Contra Am. Future Sys., Inc. v. Better Bus. Bureau
of E. Pa., 592 Pa. 66, 77 n.7, 923 A.2d 389, 395 n.7 (2007).

18See Brief for Appellee at 14 (“The grand jury reports its findings by issuing its report;
objectors tell their side by attaching responses to the document. Both are published
simultaneously; the public is then free to decide.” (emphasis added)); id. at 5 (portraying
the public as “the real decision-maker”); id. at 8 (“The report stands. The public should
see it and decide for itself.”).

The Commonwealth also appears to regard the affordance of additional process to


criticized persons, and the ability of those persons to submit written responses for the
public’s review, as mutually exclusive procedures. See Brief for Appellee at 21.
However, the Commonwealth has offered no supporting reasons why that might be so.
(…continued)

[J-56A-M-2018] - 18
Although we agree with the Commonwealth that Report 1 will likely impact

Appellants’ reputations, we differ with the government’s position in other material

respects. First, the right of citizens to security in their reputations is not some lesser-

order precept. See supra note 17. Rather, in Pennsylvania it is a fundamental

constitutional entitlement. See PA. CONST. art. I, §1; R. v. DPW, 535 Pa. at 454, 636

A.2d at 149. The right is established in the opening passage of the Pennsylvania

Constitution’s Declaration of Rights -- under the title “Inherent rights of mankind” -- and

is couched as an “indefeasible” guarantee. PA. CONST. art. I, §1. This foundational

assurance of reputational security has remained substantively extant through five

iterations of the state charter, dating back to our first Constitution of 1776.

This Court has recently stated that the Pennsylvania Constitution “places

reputational interests on the highest plane, that is, on the same level as those pertaining

to life, liberty, and property.” Am. Future Sys., Inc., 592 Pa. at 77 n.7, 923 A.2d at 395

n.7 (emphasis added); see also Driscoll v. Corbett, 620 Pa. 494, 514, 69 A.3d 197, 210

(2013) (observing that life, liberty, property, and reputation are all listed together by the

state charter as “foundational freedoms”).19

(continued…)
Additionally, we reject the notion that fairness-based enhancements -- to a non-
adjudicative truth-finding process conducted on the terms of a grand jury investigation,
see supra Part II -- should foreclose the affordance of an opportunity of individuals to
respond to critical findings directed to their conduct, per the relevant provisions of the
Investigating Grand Jury Act. See 42 Pa.C.S. §4552(e).

19 At one time, federal constitutional law appeared to be in alignment. See Wisconsin v.


Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 510 (1971) (“Where a person’s good
name, reputation, honor, or integrity is at stake because of what the government is
doing to him, notice and an opportunity to be heard are essential.”). In Paul v. Davis,
424 U.S. 693, 96 S. Ct. 1155 (1976), however, the Supreme Court downgraded
reputational interests as a matter of federal constitutional law. See id. at 701, 96 S. Ct.
at 1160-61.
(…continued)

[J-56A-M-2018] - 19
In the context of such fundamental rights, the historical acceptance of the

institution of the grand jury can go only so far in justifying the relaxation of procedural

requirements for the protection of those rights.

Second, our view aligns with those of the courts and commentators which have

rejected the Commonwealth’s premise that a state-sanctioned, judicially-supervised

grand jury stands on equal footing, in terms of public perception, with individuals whom

the grand jury may see fit to criticize. See supra Part II & note 14. Thus, we believe

that the risk that the grand jury’s pronouncements will be seen as carrying the weight of

governmental and judicial authority -- and as themselves embodying the voice of the

community relative to particular findings -- is substantial. See id.; cf. Brief for Appellants

at 30-31 (characterizing the “right of [written] response” highlighted by the

Commonwealth as a “token opportunity to respond in a way that has no possibility of

changing the outcome [and] is not due process worth the name”). In this regard, we

conclude that the lines between a grand jury “investigation” and an “adjudication” are

blurred when the grand jury renders wide-scale, individualized, condemnatory findings

on the order of those announced in Report 1.

Third, responding to the Commonwealth’s analogy between a grand jury report in

the nature of Report 1 and a civil complaint, we observe that the differences are

profound. The complaint contains allegations, not findings by a governmentally

(continued…)

Notably, as well, the federal courts exercise less stringent supervision over grand juries
than is required in Pennsylvania. Compare United States v. Williams, 504 U.S. 36, 48,
112 S. Ct. 1735, 1742 (1992) (discussing federal grand juries’ “functional
independence” from the judicial branch), with In re Dauphin Cty. Fourth Investigating
Grand Jury, 610 Pa. 296, 318, 19 A.3d 491, 503 (2011) (“The very power of the grand
jury, and the secrecy in which it must operate, call for a strong judicial hand in
supervising the proceedings.”).

[J-56A-M-2018] - 20
sanctioned body operating within the judicial sphere, upon its review of an extensive

body of evidence. Moreover, the averments in a civil complaint, unlike the findings in a

grand jury report, are subject to subsequent testing in the adjudicative process. In this

respect and more broadly, all of the points made by courts distinguishing indictments

from presentments and reports are pertinent. See supra Part II.

Fourth, and consistent with Part II of this opinion, we distinguish between a grand

jury report that is designed to address general welfare concerns, but may have a

collateral impact on reputational rights, and a report -- such as Report 1 -- in which a

primary objective is to publicly censure the conduct of specific individuals. See Report

1, at 2 (setting out to “shine a light on [the] conduct,” of named “predator priests”). With

the assistance of its legal advisor, the attorney for the Commonwealth, a grand jury

setting about the latter course should apprehend that increased procedural protections

are implicated in the interest of fundamental fairness.

Indeed, it is difficult to understand why an attorney for the Commonwealth would

not wish to present such testimony from living individuals, for the benefit of lay grand

jurors who have plainly set out to find the truth and reveal it to the public. Cf. Pa.R.P.C.

3.8, Explanatory Comment (observing that prosecutors have “the responsibility of a

minister of justice and not simply that of an advocate”). When, in unusual

circumstances, reputations must be compromised by grand juries on the order of the

pervasive condemnations embodied in Report 1, see Brief for Appellee at 6

(“Sometimes, there is simply no [other] way . . .”), we find that enhanced procedural

protections are plainly required. And notably, the Investigating Grand Jury Act does not

restrain the attorney for the Commonwealth from implementing additional procedural

protections, when a grand jury undertakes to prepare a report of the tenor and scale of

Report 1.

[J-56A-M-2018] - 21
Fifth, the procedural protections provided in the Investigating Grand Jury Act are

minimal relative to Report 1. As we have otherwise related, we conclude that the “right

of [written] response” -- entailing the opportunity to possibly append a hearsay rebuttal

statement to a 900-page report otherwise impugning an individual as a sexual predator

or facilitator alongside more than 300 others amidst the hierarchy of a religious

institution -- is not sufficiently effective. Significantly, as well, there can be no doubt that

the subject matter of the report is incendiary, and therefore, the stakes for individuals

reproached therein are substantially heightened.

Furthermore, the supervising judge’s statutory preponderance-based review may

be inadequate, in the grand jury setting, to serve as a sufficient protective measure.

“Preponderance” means the greater weight of the evidence, or evidence that “tips the

scales” toward belief. Commonwealth v. Brown, 567 Pa. 272, 284, 786 A.2d 961, 968

(2001). The application of this standard is best suited to adversarial proceedings where

competing litigants present evidence to be weighed by a factfinder -- indeed, the

preponderance of the evidence is the general standard upon which most civil matters

are resolved. See, e.g., Sutliff v. Sutliff, 518 Pa. 378, 385, 543 A.2d 534, 538 (1988).

Unfortunately, there is the risk that the standard can be too effortlessly satisfied

in the grand jury setting, where the evidence is controlled by a single presenter -- the

attorney for the Commonwealth -- free from any requirement to adduce legally

competent evidence,20 or exculpatory proofs. See supra Part II (discussing inherent

limitations associated with the grand jury regime). Such freedoms may enhance the

internal functionality of grand juries, but we reiterate that they also represent a limitation

upon its truth-finding capabilities. See id.

20By “legally competent evidence,” we mean evidence that would be admissible in a


court of law in a contested, adversarial proceeding.

[J-56A-M-2018] - 22
Moreover, from all appearances, the supervising judge may have performed his

preponderance-of-the-evidence review on a report-wide basis, rather than discretely

determining if the grand jurors’ specific criticism of each individual appellant was

supported by a preponderance of the evidence. See June 5 Opinion, at 5. But that

procedure for judicial review can afford no assurance of any protection for individual

reputational rights, when the safeguard can be overwhelmed by the tenor and scale of a

grand jury report such as Report 1.21

For these reasons, we find that preponderance-of-the-evidence review by a

supervising judge, as provided in the Investigating Grand Jury Act, is not a sufficient

safeguard to obviate the necessity to provide Appellants an opportunity to respond to

the grand jury’s criticisms in a meaningful way.

Finally, replying to the Commonwealth’s position that the Investigating Grand

Jury Act leaves no room for pre-deprivation processes above and beyond what are

provided in the enactment, we observe that that the statute is subordinate to the

Constitution. See, e.g., In re Subpoena on Judicial Inquiry & Review Bd., 512 Pa. 496,

507, 517 A.2d 949, 955 (1986) (“In the framework of our governmental system it is clear

that the constitutional rule of law is more fundamental and must prevail.”). To the extent

that the minimal procedures explicitly provided by the enactment are insufficient to

protect Appellants’ fundamental constitutional rights, the statute might be deemed

21 For instance, in the context of Report 1, application of the preponderance standard on


a report-wide basis would allow that the report could be false or inaccurate relative to a
minority of criticized individuals, as long as it was true respecting the majority of them.
The notion that the Legislature would have intended for the judicial review to proceed in
such an arbitrary fashion -- relative to the constitutionally protected reputational rights of
all individuals -- is manifestly unreasonable.

As previously noted, the Court intends to provide further guidance about preponderance
review, by supervising judges, attendant to its ongoing review. See supra note 3.

[J-56A-M-2018] - 23
unconstitutional as applied.22 Thus, the question becomes whether the statute may be

interpreted as affording sufficient process, consistent with its design, or at least as not

foreclosing a remedial pre-deprivation process. See 1 Pa.C.S. § 1922(3) (embodying

the presumption “[t]hat the General Assembly does not intend to violate the Constitution

of the United States or of this Commonwealth”). And, accordingly, Appellants’ argument

regarding the availability of additional pre-deprivation process, which satisfies the

constitutional requirement of due process, must be considered by the Court, if the

portions of the report critical of their conduct ultimately are to be released to the public.23

IV. The Availability and Nature of the Additional Process

Despite the existence of a majority consensus in the above respects, Justices

are not of one mind, at this juncture, concerning what process-related remedial

measures can be taken now -- or if any such measures would be sufficient now to

comport with due process norms -- to justify the release of the specific criticisms

22Again, we clarify that our use of the term “minimal” means minimal in the specific
context of a report in the nature, and of the scale, of Report 1.

23 The above analysis subsumes consideration of the Mathews factors. See Mathews,
424 U.S. at 335, 96 S. Ct. at 903. Specifically, we find that: the private interest affected
by Report 1 is a fundamental one equivalent to life, liberty, and property; the risk of an
erroneous deprivation is substantial in light of the inherent limitations of the grand jury
system; and the administrative burden in providing some additional process is not too
great to obviate the requirement.

Parenthetically, although many of the claims presented by challengers to Report 1 have


been couched in terms of the due process provisions of the Pennsylvania Constitution,
we note that the analogous provisions of the federal Constitution establish a minimum
floor for the protection due under the state charter. See, e.g., Commonwealth v. Arter,
637 Pa. 541, 551, 151 A.3d 149, 156 (2016) (citations omitted). Accordingly, the
Mathews factors are directly pertinent across the range of constitutional due process
claims under consideration here.

[J-56A-M-2018] - 24
pertaining to Appellants. Further, the Court has determined that it would benefit from

oral argument in considering this question. Accordingly, the matter will be calendared

for oral argument at the Court’s forthcoming session in September 2018, in

Philadelphia. We emphasize that a process for publication of an interim grand jury

report -- subject to temporary redactions necessary to protect Appellants’ reputational

interests at least until they have been afforded adequate process -- has been initiated

by our present Order in the meantime. See infra Part VIII.

V. The Remedy of Excision

While the Court remains divided concerning the availability and/or scope of a pre-

deprivation process, a consensus also pertains as to another remedial aspect.

Specifically, this Court has determined that the remedy of excision is available with

respect to a grand jury report that offends due process, or otherwise unconstitutionally

impairs reputational rights, relative to a particular individual or individuals.

Although the remedy of excising discrete, false or unsupported information from

a 900-page report might seem relatively straightforward, the Commonwealth opposes it.

Despite the grand jury’s vigorous entreaty that its findings should be made public, the

Commonwealth contends that, if there is a defect in the report implicated by Appellants’

challenges, the entire document must be suppressed. See, e.g., Brief for Appellee at 5

(“If the responses persuade the supervising judge that, in fact, the report is not

supported by a preponderance of the evidence, he must reject the report[.]”). 24 Along

24 To be fair, in this passage from its brief, perhaps the Commonwealth contemplates
application of preponderance review solely on a report-wide basis. We have previously
explained, however, the insufficiency of such review in the context of a report containing
findings of criminal and/or reprehensible conduct on the part of hundreds of persons.
See supra Parts II & III & n.21.

[J-56A-M-2018] - 25
these lines, the Commonwealth provides an extensive criticism of judicial “rewriting” of

grand jury reports. Id. at 7.

The Commonwealth’s all-or-nothing approach undermines the earnestly-

expressed wishes of the grand jury which it empaneled. See Report 1, at 1 (“We, the

members of this grand jury, need you to hear this.”). It would be ideal if the grand jury

remained in session, so that a broader panoply of remedies would be available to us.

And it would be preferable for the grand jury to have an opportunity to correct mistakes

that it may have made, if any.

But the grand jury’s term has expired. And we have little doubt -- upon our

review of the grand jurors’ explicit wishes inscribed in Report 1 -- that those jurors would

prefer for any mistakes to be eliminated upon culmination of all necessary process (if

any remedial pre-deprivation process can be found to be sufficient), over suppression of

their entire findings, explanations, and recommendations. Accord Carlacci v. Mazaleski,

568 Pa. 471, 477-78, 798 A.2d 186, 190 (2002) (holding that, although there was no

statutory right to expungement of Protection From Abuse Act records, there was a due

process right to such expungement, given the potential reputational harm of the extant

records).25

25 See also In re Grand Jury Proceedings, Special Grand Jury 89-2, No. 92-Y-180, slip
op., 1993 WL 245557, at *3 (D. Colo. Jan. 26, 1993) (directing a release to the public of
a redacted grand jury report); Brief for Appellants at 29-30 (“It cannot possibly be, and is
not the law in this Commonwealth, that a Supervising Judge is powerless to correct
manifest error, no matter how serious or how violative of fundamental constitutional
protections the errors may be.”). See generally BEALE, ET AL., GRAND JURY L. & PRAC.
§2:5 (“The only complete and fully satisfactory remedy for the subject of an improper
grand jury report is the suppression of all objectionable portions of the report before it is
released to the public.”).

[J-56A-M-2018] - 26
VI. Temporary Redaction and Public Release of an Interim Grand Jury Report

Returning to the matter of temporary redactions, the approach of publicly

releasing an interim grand jury report with such redactions was proposed by the group

of news organizations presenting themselves as Media Intervenors.26 In directing the

preparation of such a report in the accompanying Order, see infra Part VIII, we

emphasize that we have employed a due-process-based protocol affording Appellants --

and all others with challenges to the grand jury report pending in other cases -- the

opportunity to voice discrete objections. We have also decided to utilize the services of

a special master, who will be appointed via separate order, to adjudicate any associated

controversies. In this way, the Court will continue to proceed with the unwavering

objective that fairness must be consistently administered to all parties in the context of

grand jury reports, as is the case otherwise in the process of orderly judicial review.

Individual Justices have expressed deep concern for ensuring the continued

protection of the petitioner-appellants’ reputational rights until the matter of a remedy is

decided. Accordingly, we take this opportunity to stress the importance of fashioning

the temporary redactions to effectively safeguard those interests. For example, the

Commonwealth should not substitute initials for names, since this approach obviously

could suggest an association between material in the report and a case caption

employing a petitioner-appellant’s initials, thus potentially giving rise to public

speculation concerning identity. Indeed, no substitute references of any kind should be

26 The Media Intervenors will be afforded provisional intervention status for the limited
purpose of considering the merits of an “Application for Public Access” that they have
filed with this Court. See Commonwealth v. Fenstermaker, 515 Pa. 501, 504 n.1, 530
A.2d 414, 416 n.1 (1987).

We acknowledge that the Media Intervenors’ request for an interim report was posed in
the alternative, as their main plea is for the Court to authorize the public release of
Report 1 in its entirety.

[J-56A-M-2018] - 27
inserted into the report. Rather, some technique must be applied to temporarily mask

all content which might give rise to an association between an appellant and discrete

material in the report. In this respect and more broadly, the Commonwealth must

employ all reasonably available measures to prevent the identification of the petitioner-

appellants via either specific or contextual references in the report.

The petitioner-appellants, on the other hand, must appreciate that, in addition to

safeguarding their rights, it is also this Court’s present aim to make the bulk of Report 1

available to the public as soon as possible. Accordingly, they are advised that they may

not assert objections to generalized content of the report simply because it may pertain

to them. For example, with regard to Report 1’s depiction of more than 300 clergymen

as “predator priests,” this assertion will not be suppressed on the basis that a particular

appellant has been named as being among the 300.

In all events, our governing purpose should be very clear by this point, and we

trust that a special master will serve ably to resolve any residual disputes.

VII. Conclusion

Under the Declaration of Rights set forth in the Pennsylvania Constitution,

individuals enjoy the fundamental right to the protection of their reputations. That right

cannot be impaired by governmental actors -- or those operating under governmental

authority -- absent the affordance of due process of law to affected individuals. Due

process is measured in terms of a meaningful opportunity to be heard, encompassing

participation at a time when it will be meaningful.

The 40th Statewide Investigating Grand Jury undertook the salutary task of

exposing alleged child sexual abuse and concealment of such abuse, on an

extraordinarily large scale, which the grand jurors have pronounced was perpetrated by

trusted members of a religious institution. Thus, the grand jury submitted a report for

[J-56A-M-2018] - 28
publication specifically finding that more than 300 people, identified by name, committed

criminal and/or morally reprehensible conduct. Ideally, living persons so identified

would have been afforded the opportunity to appear before the grand jury and to

respond, in some reasonable fashion, to the grand jury’s concerns. For those among

the present challengers who were denied such opportunity, and who otherwise have

submitted proper appeals seeking the remedy of a pre-deprivation hearing, we hold that

they are entitled to this Court’s further consideration of whether additional process can

and should now be provided as a curative measure.

VIII. Order

The Application to Intervene at 106 WM 2018 is granted, to the extent that the

Media Intervenors are afforded provisional intervention status for the limited purpose of

considering the merits of the Application for Public Access that they have filed with this

Court. See Commonwealth v. Fenstermaker, 515 Pa. 501, 504 n.1, 530 A.2d 414, 416

n.1 (1987).

With respect to the Application for Public Access, the Court grants the Media

Intervenors’ alternative request for Report 1 of the 40th Statewide Investigating Grand

Jury to be temporarily redacted to permit public dissemination of an interim version of

the report pending further resolution of the challenges before the Court. The

Commonwealth is directed to prepare a redacted version of Report 1, which removes

specific and contextual references to any petitioner who has an appellate challenge

pending before this Court, including cases not listed in the present caption, in a fashion

that is consistent with the letter and spirit of the above Opinion (the “Interim Report”).

The Commonwealth is further directed to append responses accepted by the

supervising judge from all individuals and entities allowed to do so, but which have not

filed appeals with this Court (the “Responses”).

[J-56A-M-2018] - 29
It is noted that the present version of the report already contains redactions per

which the grand jury itself omitted identifying information from documentary materials

inserted into the report, primarily concerning victims and witnesses. As such, in the

Interim Report, the Commonwealth shall identify all temporary redactions made

pursuant to this Order with the notation “REDACTED -- ONGOING APPELLATE

LITIGATION.” The Commonwealth shall complete this redaction process on or before

August 3, 2018, at 2:00 p.m.

Subsequently, the Commonwealth shall immediately serve the Interim Report

and the Responses -- which will remain subject to grand jury secrecy pending

completion of the process prescribed here -- on all petitioners whose appellate

challenges are presently pending in this Court (including in matters that are not the

direct subject of this Opinion and Order). Simultaneously, the Commonwealth shall

provide a copy of the Interim Report and the Responses to the special master, who will

be designated by separate order.

By 1:00 p.m. on August 7, 2018, the petitioners with appeals pending in this

Court may submit to the special master any challenges to the redactions. Those

challenges shall be limited to identifying with particularity any errors in redaction, with

the objecting petitioner identifying precisely what individual-specific information

regarding the petitioner remains in the Interim Report and the Responses.

If no challenges are presented with regard to the redaction process, the special

master shall publicly release the Interim Report and Responses no later than 2:00 p.m.

on August 8, 2018.

If timely challenges to the redaction process are submitted, the special master

shall promptly resolve all such challenges, making any necessary additional redactions.

[J-56A-M-2018] - 30
The special master shall publicly release the Interim Report and the Responses no later

than 2:00 p.m. on August 14, 2018.

Requests for alterations to this schedule will not be entertained from the parties,

and no extensions will be granted at their request. The parties are cautioned against

provoking or instigating unnecessary ancillary litigation regarding the production of the

Interim Report.

In all other respects, the Media Intervenors’ Application for Public Access is

denied.

The Prothonotary is directed to schedule the appeals at 75, 77-82, 84, and 86-89

WM 2018 for oral argument in Philadelphia.

Justices Todd, Donohue, Dougherty, Wecht and Mundy join the opinion.

Justice Baer joins Sections I, II and IV-VIII of the majority opinion, concurs in the

result as to Part III and files a concurring opinion.

[J-56A-M-2018] - 31